Madhya Pradesh High Court
Ramkishun Kushwaha vs The State Of Madhya Pradesh on 8 May, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:21680
1 CRA-5884-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 8 th OF MAY, 2025
CRIMINAL APPEAL No. 5884 of 2022
RAMKISHUN KUSHWAHA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Krishan Kumar Kushwaha - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
This appeal is filed being aggrieved of the judgment dated 20/06/2022
passed by the learned Special Judge, POCSO Act, Tikamgarh, District
Tikamgarh in Special Case No. 27/2021 whereby the appellant has been
convicted for offence punishable under Section 3 & 4 of POCSO Act and
sentenced to undergo R.I. for twenty years and fine of Rs. 20,000/- with
default stipulation of further R.I. for six months.
2. It is submitted that it is a case of consent. The appellant has been falsely
implicated. The prosecutrix was major at the time of the incident. Thus, it is
submitted that the trial court has erred in convicting the appellant only on the
basis of D.N.A. report Ex. P-28 whereas in the case of consenting adults,
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D.N.A. report alone will not be a sufficient circumstance to uphold the
conviction.
3. Shri Manas Mani Verma, learned Government Advocate opposes the
prayer and submits that D.N.A. is positive. Age of the prosecutrix is
doubtful. Therefore, conviction be maintained.
4. After hearing learned counsel for the parties and going through the
record, it is seen that date of birth of the prosecutrix mentioned in the records
is 11 th February, 2006. It has been proved by PW-8 Smt. Ranjana
Shrivastava School Teacher. However, in the cross-examination, she
admitted that neither any horoscope nor any Government record was
produced at the time of admission. She admitted that she had not given
admission to the prosecutrix. She admitted that if incorrect date of birth of
the prosecutrix is mentioned by her parents, then she cannot say anything
about it.
5. PW-1 is the prosecutrix. She has turned hostile for the reasons best
known to her. She has not supported the prosecution case either on the
aspect of her age or on the aspect of violation of her privacy. In the cross-
examination, PW-1 prosecutrix admitted that her father had recorded her age
by reducing it. She stated that at the time of her deposition, she was adult.
She further stated that she had only reported that appellant had abused her but
had not reported anything else. On such report of abuse, her signatures were
obtained. Spot map was not prepared in front of her and only her signatures
were obtained. She further admits that she was not threatened with life and
this is what she has stated in her statements Ex. P-6.
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6. PW-2 mother of the prosecutrix has denied that age of the prosecutrix
was 15 years at the time of the incident. In the cross-examination, she
admitted that age of the prosecutrix at the time of her deposition was 19
years. She further admitted that at the time of admission, age of the
prosecutrix was recorded on a lower side. She admitted that her age was
lowered by two years.
7. PW-3 is the father of the prosecutrix. He too has stated that at the time
of the incident, age of his daughter was 18-19 years. He stated that he has
two sons and three daughters. The prosecutrix is third number child. He
denied this fact that on 1/05/2021, when they were digging the onion crop,
that time, the prosecutrix had complained that Ramkishan had caught hold of
her and had violated her privacy. He also denied her case diary statements
Ex. P-12 and said that he had never given statements to the police. In the
cross-examination, he admits that at the time of admission, he reduced the
age of the prosecutrix and present age of the prosecutrix is 19-20 years.
8. PW-4 and PW-5 are brothers of the prosecutrix. Their age is mentioned
in the deposition sheet as 32 and 22 years respectively. They have not
supported the prosecution case.
9. PW-15 is the lady Doctor Rekha Badgainya who had examined the
prosecutrix on 2/05/2021 at District Hospital Tikamgarh in her capacity as
Medical Officer. She admitted in her cross-examination that there were no
internal or external marks on the body of the prosecutrix. She stated that if
there would have been forceful intercourse, then the prosecutrix would have
definitely sustained injuries. She further admitted that in terms of the report
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Ex. P-1, no definite opinion in regard to commission of rape can be given.
She further admitted that if there would have been an attempt of forceful
sexual assault, then there would have been reddishness, swelling and
bleeding on the private parts of the prosecutrix or there would have been
abrasion on such parts. She submits that no definite opinion can be given in
regard to violation of the privacy.
10. When all these facts are taken into consideration, then it is evident that
neither the prosecutrix nor the parents have supported that prosecutrix was
minor at the time of the incident. On the other hand, they admitted that the
prosecutrix was aged about 19-20 years at the time of the incident.
11. Thus, it is evident that the prosecution has failed to prove that the
prosecutrix was minor at the time of the incident. Once, they have failed to
prove that the prosecutrix was minor and they have not discharged the burden
in the light of the judgment of the Supreme Court in Birad Mal Singhvi Vs.
Anand Purohit AIR 1988 SC 1796 and also the fact that victim has not stated
that any intercourse was performed on her or violation of her privacy, on the
basis of D.N.A. report, conviction cannot be sustained in the light of the
judgment of the Supreme Court in Ranjitsing Brahmajeetsing Sharma Vs.
State of Maharashtra (2005) 5 SCC 294 and the judgment of the Gujarat
High Court in Premjibhai Bachubhai Khasiya Vs. State of Gujarat and
another 2009 Cri.L.J. 2888.
12. Accordingly, the impugned judgment dated 20/06/2022 passed by the
learned Special Judge, POCSO Act, Tikamgarh, District Tikamgarh in
Special Case No. 27/2021 is set aside. The appellant, if not required in any
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other case be released immediately. Case property be disposed of in terms of
the directions of the trial court.
13. In above terms, the appeal is allowed and disposed of.
14. Record of the court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vy
